J & J Sports Productions Inc v. Molson et al

Filing 15

OPINION AND ORDER: GRANTING 14 MOTION for Default Judgment as to Defendants by Plaintiff J & J Sports Productions Inc. The Clerk is directed to ENTER FINAL JUDGMENT in this case in favor of plaintiff J & J Sports Productions, Inc., and against defendants Maria Molson and MTM Services Incorporated in the amount of $ 5,541.50. Signed by Senior Judge James T Moody on 1/9/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
J & J SPORTS PRODUCTIONS, INC.,

)
)
Plaintiff,
)
)
v.
)
)
MARIA MOLSON a/k/a MARIA T. ROSS,
)
individually and d/b/a PORTER’S TAP, INC. )
d/b/a PORTER’S TAP BAR & GRILL; and
)
MTM SERVICES INCORPORATED
)
d/b/a PORTER’S TAP, INC. d/b/a PORTER’S )
TAP BAR & GRILL d/b/a LLOYD & MARIA )
ENTERPRISES, INC.,
)
)
Defendant.
)

No. 2:17 CV 194

OPINION and ORDER
I.

BACKGROUND
On April 27, 2017, plaintiff J & J Sports Productions, Inc. (“J & J Sports”), filed

suit against defendants Maria Molson (also known as Maria T. Ross, doing business as
Porter’s Tap, Inc., and doing business as Porter’s Tap Bar & Grill), individually, and
MTM Services Incorporated (doing business as Porter’s Tap, Inc., doing business as
Porter’s Tap Bar & Grill, and doing business as Lloyd & Maria Enterprises, Inc.). (DE
# 1.) The record indicates that defendants were served on May 4, 2017. (DE ## 6, 7.) By
rule, defendants had 21 days after service of the summons and complaint to file a
responsive pleading. See Fed. R. Civ. P. 12(a)(1)(A)(i). To date, defendants have not filed
any responsive pleading or otherwise appeared in this case. At plaintiff’s request, the
Clerk entered default on July 7, 2017. (DE # 13.)

J & J Sports filed this motion for default judgment on August 1, 2017 (DE # 14), to
which defendants have not responded. Plaintiff asserts that it is entitled to judgment on
its claims for violations of 47 U.S.C. §§ 553 and 605.1 (DE # 14 at 1.) Plaintiff seeks
damages in the amount of $ 10,000 in statutory damages, $ 30,000 in enhanced statutory
damages, $ 1,111.50 in attorneys’ fees and $ 430 costs. (DE # 14-2 at 8.)
II.

LEGAL STANDARD
The court may enter default judgment against a party against whom affirmative

relief is sought when it fails to plead or otherwise defend. FED. R. CIV. P. 55(b)(2). “The
grant or denial of a motion for the entry of a default judgment lies within the sound
discretion of the trial court . . . .” Dundee Cement Co. v. Howard Pipe & Concrete Prods. Inc.,
722 F.2d 1319, 1322 (7th Cir. 1983). If the court determines that the defendant is in
default, all well-pleaded allegations of the complaint, except those relating to the
amount of damages, will be taken as true. Id. at 1323.
III.

FACTS
Based on defendants’ default, the court takes the allegations in the complaint as

true. The affidavits submitted with the motion for default judgment further establish
the veracity of the allegations made in the complaint.
On May 2, 2015, Floyd Mayweather, Jr., fought Manny Pacquiao in a boxing
match. (DE # 1 ¶ 16.) J & J Sports was granted the exclusive nationwide commercial

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Plaintiff’s complaint also contained a third claim for conversion. (DE # 1 at 6.)
However, plaintiff does not seek default judgment on that claim, nor does he mention it
anywhere in his motion or supporting brief. (See DE ## 14, 14-2.) Accordingly, the court
will not address the conversion claim and will consider it abandoned.
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distribution rights to the broadcast of this fight, referred to as “The Fight of the Century:
Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program” (the “Program”).
(Id.) The Program included all “under-card bouts” and the fight commentary
encompassed in the television broadcast. (Id.)
On the night of the fight, the Program was displayed at Porter’s Tap, at 6405
Kennedy Avenue in Hammond, Indiana. (Id. ¶ 7, 11.) Specifically, Lucia Sanchez
(“Sanchez”), an auditor, visited Porter’s Tap and witnessed the Program on one
television monitor behind the bar. (DE # 14-3 at 1.) Porter’s Tap did not advertise its
exhibition of the Program, and Sanchez was told by a woman at the bar not to post
anything on Facebook which would indicate that Porter’s Tap was showing the fight.
(Id. at 3.) There were 8 people inside the establishment, and no cover charge was
assessed. (Id.) Porter’s Tap is owned and operated by defendant MTM Services
Incorporated, of which defendant Maria Molson is an officer. (Id. ¶ 7.)
Through sub-licensing agreements with J & J Sports, commercial entities were
able to acquire rights to publicly exhibit the Program within their commercial
establishments, including bars and restaurants. (Id. ¶ 17.) However, neither defendants,
nor anyone else associated with Porter’s Tap, had a sub-licensing agreement with J & J
Sports. (Id. ¶ 11; DE # 14-4 ¶ 7.) Thus, plaintiff alleges that defendants unlawfully
intercepted, received, published, divulged, displayed, and/or exhibited the Program at
its commercial establishment. (DE # 1 ¶ 19.)

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IV.

LEGAL CONCLUSIONS
A.

Jurisdiction

The court has subject matter jurisdiction under 28 U.S.C. § 1331 because plaintiff
brings this action pursuant to federal statutes 47 U.S.C. §§ 553 and 605 of the Federal
Communications Act of 1934. Venue is proper under 28 U.S.C. § 1391(b)(2). Personal
jurisdiction is established over defendants due to defendants’ minimum contacts with
Indiana.
B.

Liability

Taking the allegations in the complaint as true, defendants unlawfully
intercepted or received the Program and displayed it, for purposes of direct or indirect
commercial advantage and/or private financial gain. (DE # 1 ¶¶ 19–20.) They did so
without authorization. (Id. ¶ 11; DE # 14-4 ¶ 7.)
According to 47 U.S.C. § 553(a), “[n]o person shall intercept or receive or assist in
intercepting or receiving any communications service offered over a cable system,
unless specifically authorized to do so by a cable operator or as may otherwise be
specifically authorized by law.” According to 47 U.S.C. § 605(a), “[n]o person not being
authorized by the sender shall intercept any radio communication and divulge or
publish the existence, contents, substance, purport, effect, or meaning of such
intercepted communication to any person. No person not being entitled thereto shall
receive or assist in receiving any interstate or foreign communication by radio and use
such communication . . . for his own benefit . . . .”

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Whether § 553 or § 605 applies depends on whether defendants intercepted the
Program from a cable or a satellite transmission. Plaintiff admits, however, that it is
impossible to isolate the precise means by which defendants pirated the signal.2 (DE
# 14-2 at 1.) Nevertheless, given the undisputed conduct of defendants, the court finds
that defendants have necessarily violated either § 553 or § 605.
Furthermore, both statues provide that any person aggrieved by their violation
may bring a civil action against the violator. 47 U.S.C. §§ 553(c)(1) and 605(e)(3)(A). J & J
Sports has properly brought such an action. Therefore, the court finds defendants liable
to J & J Sports for their violation.
V.

DAMAGES & FEES
Although plaintiff is permitted to plead its § 553 and § 605 claims in the

alternative, it may only recover damages under one of the statutes. J & J Sports Prods.,
Inc. v. Navarro, 229 F. Supp. 3d 793, 800 (N.D. Ind. 2017). Plaintiff requests damages
under § 605, rather than § 553. (DE # 14-2 at 8.) In this case, the court will accept
plaintiff’s request to proceed under § 605, so as not to deprive plaintiff of potential
damages due to defendants’ inaction. See J & J Sports Prods., Inc. v. McCausland, No. 1:10CV-01564-TWP, 2012 WL 113786, at *2 (S.D. Ind. Jane. 13, 2012) (citing J & J Sports Prods.,
Inc. v. Aguilera, 2010 WL 2362189, *2 (N.D.Ill. June 11, 2010) (“The Court concludes that
although the precise means of transmission has not been determined, under the

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This is particularly true given that defendants’ non-appearance has made
discovery unavailable.
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circumstances of this case, where Plaintiff was deprived of the opportunity to conduct
discovery regarding the transmission at issue because of Defendants’ failure to appear
or defend in this action, Plaintiff should not suffer the resulting prejudice.”)). However,
this distinction is ultimately irrelevant, as the court is choosing to award an amount of
damages that happens to be permissible under either statute’s cap. See Navarro, 229 F.
Supp. 3d at 801.
Specifically, the court will determine plaintiff’s damages pursuant to 47 U.S.C.
§ 605(e)(3)(C).3
A.

Statutory Damages

Under § 605(e)(3)(C)(i), the aggrieved party may elect to recover either actual
damages or statutory damages. Those statutory damages must be between $ 1,000 and
$ 10,000, per violation. 47 U.S.C. § 605(e)(3)(C)(i)(II). The court has discretion to choose
an amount of statutory damages within that range. Navarro, 229 F. Supp. 3d at 802 (“It is
well established that the district courts have broad discretion to determine awards in
cases like this.”). Plaintiff has requested the maximum statutory damages for
defendants’ single violation: $ 10,000. (DE # 14-2 at 6, 8.)
Another judge in this district recently addressed this same issue in a case with
similar facts. See J & J Sports Prods., Inc. v. Estrella, No. 2:14-CV-171, 2016 WL 1183202

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Although a hearing on damages is sometime necessary following an entry of
default judgment, see Dundee Cement Co., 722 F.2d at 1323, here, the damages are
ascertainable without such a hearing. In this case, the damages are bounded by statute
and are supported by detailed affidavits.
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(N.D. Ind. Mar. 28, 2016). In that case, J & J Sports also sought damages against a bar
under § 605 for displaying a boxing match without authorization. See id. at *1. There, the
court found it was “fair” to award statutory damages in the amount that would have
been paid had defendant legally contracted with plaintiff. Id. at *3. The court here
agrees that such an award is fair.
Plaintiff has provided a chart that lists the price for establishments to purchase
and display the Program depending on their maximum capacity. (DE # 14-4 at 11.) The
price for an establishment with a capacity of 1 to 100 persons was $ 3,000. (Id.) The price
was $ 6,000 for a capacity of 101 to 200 persons. (Id.) Plaintiff did not provide the total
occupancy of Porter’s Tap. However, only 8 people were present at the bar, and the
court has no knowledge that the capacity was greater than 100. Thus, the court finds
that the evidence supports damages based on the lower capacity.
The court awards $ 3,000.00 in statutory damages to J & J Sports.
B.

Enhanced Damages

In addition to statutory damages, plaintiff requests enhanced damages of three
times the amount of statutory damages, or $ 30,000. (DE # 14-2 at 4, 8.) “In any case in
which the court finds that the violation was committed willfully and for purposes of
direct or indirect commercial advantage or private financial gain, the court in its
discretion may increase the award of damages, whether actual or statutory, by an
amount of not more than $100,000 for each violation of subsection (a).” 47 U.S.C.
§ 605(e)(3)(C)(ii).

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As evidence of defendants’ willfulness, plaintiff’s president attests that the
Program cannot be mistakenly, innocently, or accidentally intercepted. (DE # 14-4 at 3.)
Moreover, according to the undisputed allegations of this case, defendants’ violation
“was done willfully and for purposes of direct and/or indirect commercial advantage
and/or financial gain.” (DE # 1 ¶ 20.) Therefore, the court may, in its discretion, award
enhanced damages.
In order to arrive at an enhanced damages figure, courts have considered factors
such as: “(1) the number of violations; (2) defendant’s unlawful monetary gains; (3)
plaintiff’s significant actual damages; (4) whether defendant advertised for the event;
and (5) whether defendant collected a cover charge on the night of the event.” Estrella,
2016 WL 1183202, at *3. Additionally, “courts also consider the deterrent effect of the
award, with an eye toward imposing an award that is substantial enough to discourage
future lawless conduct, but not so severe that it seriously impairs the viability of the
defendant’s business (at least for a first offense).” Id.
The allegations and evidence indicate that defendants have committed a single
offense, and it is their first offense. There is no evidence of significant monetary gains,
given that only 8 people were present at Porter’s Tap. On top of that, there was no cover
charge assessed to patrons and no evidence of any advertising for the event. In fact,
Sanchez’s assertion that she was told not to post on Facebook further indicates that
defendants did not want to advertise the event and were not attempting to gain
substantial funds from their exhibition of the Program.

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In Estrella, the court awarded enhanced damages of $ 6,600, or three times the
amount of statutory damages. Estrella, 2016 WL 1183202, at *3. But, in that case, the
defendant charged a $ 5 cover fee to patrons and advertised the fight to attract patrons.
Id. at *1, *3. On the other hand, in J & J Sports Productions, Inc. v. Navarro, 229 F. Supp. 3d
793, 806 (N.D. Ind. 2017), the same district court judge that had presided over Estrella
chose not to award enhanced damages to J & J Sports as a matter of law on a motion for
summary judgment. In Navarro, only 15 people were present at the establishment
during the fight. Id. The defendants in that case did not advertise the fight, did not
collect a cover charge, and did not make any other attempts at financial gain from
showing the fight. Id. Thus, regarding the enhanced damages factors, the case at hand
falls closer to Navarro than Estrella.
However, unlike in Navarro, defendants have defaulted, and so it is undisputed
that they acted willfully and for financial gain. Also, the court agrees with J & J Sports
that the total damages should be greater than the actual licensing fee or contract price,
in order to deter future violations of the statute.
Therefore, the court awards $ 1,000.00 in enhanced damages to J & J Sports.
C.

Attorneys’ Fees and Costs

Plaintiff also requests attorneys’ fees and expenses as part of this default
judgment. Plaintiff asserts it is entitled to these fees and expenses, pursuant to § 605.
(DE # 14-2 at 8.) According to the statute, “the court . . . shall direct the recovery of full

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costs, including awarding reasonable attorneys’ fees to an aggrieved party who
prevails.” 47 U.S.C. § 605(e)(3)(B)(iii) (emphasis added).
A district court generally has wide discretion in determining a reasonable
attorneys’ fee award. Moriarty v. Svec, 233 F.3d 955, 963 (7th Cir. 2000). Along with its
motion for default judgment, plaintiff’s counsel has submitted an affidavit and a
detailed billing statement establishing reasonable attorneys’ fees and costs in the
amount of $ 1,541.50 for the actions taken by the attorneys through the filing of the
default judgment motion. (DE ## 14-6, 14-7.) That amount includes costs of $ 400 in
filing fees and $ 30 in mailing fees. (DE # 14-7.)
Accordingly, the court awards plaintiff $ 1,541.50 in attorneys’ fees and costs.
VI.

CONCLUSION
For the foregoing reasons, plaintiff’s motion for default judgment (DE # 14) is

GRANTED. The Clerk is directed to ENTER FINAL JUDGMENT in this case in favor
of plaintiff J & J Sports Productions, Inc., and against defendants Maria Molson (also
known as Maria T. Ross, doing business as Porter’s Tap, Inc., and doing business as
Porter’s Tap Bar & Grill), individually, and MTM Services Incorporated (doing business
as Porter’s Tap, Inc., doing business as Porter’s Tap Bar & Grill, and doing business as
Lloyd & Maria Enterprises, Inc.), in the amount of $ 5,541.50.
SO ORDERED.
Date: January 9, 2018
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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